Friday, October 30, 2009

Lawyer advertising rules and opinions continue to break the bounds of utterly ridiculous.

The premise of ad rules is simple: potential clients are dumber than dirt and need to be protected from themselves.

This is why lawyers can't say they are the "best," or "better than any lawyer in town." Because potential clients are stupid and will believe this, and immediately dump a pile of cash in a paper bag and run to hire the lawyer. Then, their case will be mishandled. Yeah.

Bar associations should be ashamed of themselves for proceeding on this notion.

Now South Carolina jumps into the fray. The ABA Journal has the story here.

A new opinion out of that state advises lawyers that if they “claim” a website listing by clicking on an “update this listing” link "or otherwise adopting the posted information must make sure the material conforms with ethics rules—even information that is posted by others, including clients."

Translated: client comments in favor of the lawyer are not welcome. The SC Bar will say that negative client comments are not welcome either, as the opinion talks about "false, misleading, deceptive or unfair" statements, but as I say much too often, let's be honest here.

In fact, the SC Bar is not subtle in their purpose:

Client testimonials, barred by state ethics rules, should not be solicited or allowed. More general recommendations or statements of approval—client endorsements—may be allowed if they aren’t misleading and don’t create unjustified expectations.This is the best:

“If any part of the listing cannot be conformed to the rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service,” the opinion counsels.

What is going on here? Your clients can't say anything nice and if they do, you must delete the site.

Shameful.

Just shameful.

Cue the law professors:

Mercer University law professor David Hricik:

“Frankly, this one baffles me,” Hricik wrote.

No David, no reason to be baffled. This is clear. An unconstitutional ban on speech. We have gone too far and the SC Supreme Court will say so at some point.

Avvo general counsel Josh King, who duly notes the opinion is target at his company's site, told the ABA Journal that constitutional issues are all over this.

Yep.

Except the SC Bar doesn't care:

"The ethics opinion notes it is not addressing any constitutional questions"

Yeah, forget that.

Ethics opinions are just that, opinions. They may not be used (at least in Florida), by a complainant in a Bar Grievance.